Twitter Challenges Another Subpoena Directed at Occupy Activist

    May 17, 2012

    Twitter is resisting an attempt by prosecutors to gain access to the message history of a writer and activist who was arrested during Occupy Wall Street protests last fall, reports.

    The micro-blogging service filed court papers Monday asking a judge to quash a subpoena in which the Manhattan district attorney had ordered it to produce months-worth of old tweets, now deleted, that had been posted by Malcolm Harris, who was among 700 people arrested on the Brooklyn Bridge during a march on Oct. 1.

    Prosecutors argued that these tweets might show whether Harris was aware that police had ordered demonstrators not to march across the bridge.  Harris unsuccessfully tried to fight the subpoena on his own. A New York judge ruled that Harris lacked standing to fight the subpoena because he did own the tweets, Twitter did.

    Judge Matthew Sciarrino wrote in his April decision that once Harris posted his messages they became the property of Twitter and that any constitutional protection he had over their disclosure disappeared:

    “While the Fourth Amendment provides protection for our physical homes, we do not have a physical ‘home’ on the Internet,” Sciarrino wrote. He also reasoned that Twitter was free to redistribute its customers’ tweets “to anyone, any way and for any reason it chooses.”

    Twitter contends the judge misunderstood how its service works, claiming that Twitter users do not relinquish ownership of their messages or photos by posting them on the service. Twitter also argued that the federal Stored Communications Act provides Twitter users with standing to challenge demands for their account records. A decision will be forthcoming.

    This is not the first time prosecutors have sought Twitter account information from “occupy” activities.  In January, a Massachusetts prosecutor subpoenaed the Twitter records of an Occupy Boston activist, as well as records linked to two certain “hashtags” (#BostonPD).  A CNN correspondent interviewed me to comment on the subpoena – and published the following:

    Subpoenaing Twitter records is becoming more common, according to lawyer Ethan Wall, of the Richman Greer law firm in Miami. Wall, who specializes in intellectual property litigation, said the practice could have “a chilling effect on free speech.”

    “We are in this information-accessible age where we can post anything and everything from anywhere on any device,” Wall said. “Because it’s so easy I don’t think that people put the thought into how this might affect them personally, professionally or legally.”

    This is just one example of how the line between privacy and accessibility is blurring in the age of Internet communication. Stay tuned, as I will survey this issue on the blog over the coming weeks. 

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